We are a coalition of students (Indigenous, non-Indigenous settlers, immigrant settlers) and profs at windsor law and our Professor is Beverly Jacobs who has asked for our help in raising awareness as law students about all the violence against Indigenous folks by the colonial state
Summary of Events in Court October 22
Permanent Injunction Hearing
Foxgate Developments v Doe et al.
Summary of Proceedings
Contempt/Contempt of Court: A charge made at the discretion of a judge for not obeying and or/respecting the processes and rules of court proceeding
Counsel: The lawyer representing a party
Ultimatum: Something a person must do within a specific time period in order to be allowed something else, for example, "Eat your vegetables in the next ten minutes, or you will not get dessert."
Uncontested Hearing: A court proceeding where only one side is making submissions/arguments
Have Materials Struck: The materials designated to be struck are treated as though they were never submitted
Review of October 9 Decision
As a result of the hearing on Friday, October 9, Justice Harper ("Harper") gave a ruling that issued an ultimatum to Mr. Williams: You will not be allowed to participate in the next hearing (Oct 22) if you do not comply with the court order and vacate the land.
This was problematic for many reasons, but especially because although Harper had declared Mr. Williams the "leader of the protestors," Mr. Williams repeatedly stated that he was not, nor can he control others' actions. This effectively makes the ultimatum impossible to comply with.
First Issue: Did Mr. Williams Comply with the Ruling from Oct 9?
Harper would not allow Mr. Williams to bring his constitutional claims unless he complied with the ultimatum. Mr. Williams indicated that he was not currently on the disputed land and suggested counsel for the OPP can confirm this.
Harper wanted proof that all land defenders were no longer on land. Again Mr. Williams explained he has no power or control over other people. Harper stated (and counsel for Foxgate agreed) that Mr. Williams had been given ample opportunity to purge his charges for contempt to allow his participation.
Counsel for Foxgate relied on two cases to support their argument that those who are in openly in contempt of court should not be allowed to participate in an injunction hearing. Counsel introduced a video from Mr. Williams' Facebook page, using it as evidence Mr. Williams intends to continue his contempt and incite further protests. Counsel for Haldimand agreed.
Mr. Williams responded by saying, "You’re asking me to comply with an order that is fundamentally flawed in law, ignoring the glaring use of discretion that doesn’t address systemic factors that brought me before the court." He continued:
"Our rights aren’t rewards for being 'good little Indians'. They are entrenched in law."
Harper ruled that "it is not an option is to take the law into your own hands, to occupy others’ land [...] I find that Mr. Williams continues to be in contempt [...] and I will not allow any further participation by Mr. Williams... due to abuse of this court’s process. Any material pleadings he has filed... they will be struck."
An unidentified woman in the courthouse addressed Harper. She was forcibly removed from the court, but not before saying:
"Excuse me your honour - I'm here to defend myself. I am here to address the court and Mr. Williams is not the leader. I want it on the record. Get your hands off me."
Mr. Williams attempted to address this, but was immediately and forcibly muted at the direction of Harper.
With Mr. Williams being muted and removed as party to the proceedings, the hearing continued uncontested and counsel for Foxgate and Haldimand began making their submissions on why the injunction on 1492 Land Back Lane should be made permanent.
Second Issue: Should the Injunction be Made Permanent?
Foxgate Developments presented their arguments to the judge as to why the permanent injunction should be ordered.
They said that they had legal ownership of the land, and had gone "above and beyond" in consulting with Six Nations Elected Council when they "had no legal obligation to do so.”
They also told the court that land defenders do not have the right to block roads, and that asserting their treaty rights is "not a defence" that can be used to prevent an injunction from being issued.
Foxgate also referred to the "harm suffered" by people who had purchased houses on the lands in dispute and the surrounding communities, forgetting that many land defenders are community members.
Haldimand County agreed with Foxgate's arguments. Foxgate Developments estimated their costs to be about $94,000, and Haldimand County estimated costs at $49,790. In a civil dispute, the losing party usually pays costs to the winning party.
Justice Harper then ordered the injunction be made permanent, and stated he would release a full decision at a later date.
Mr. Williams will appeal the decision.
This update brought to you by: